Monday, June 3, 2013

Holder Learning Needed Lesson in Leak Cases

Attorney General Alberto Gonzales suggested back in May 2006 that the New York Times could be criminally prosecuted for disclosing the Bush administration’s previously secret warrantless electronic surveillance program. Gonzales may never have seriously intended to initiate the first such criminal prosecution of a U.S. newspaper, but the outcry from journalists and free-press advocates was quick and loud  and the idea was never pursued.
The lesson of that episode should not have been lost on an attorney general who came to office as an anti-Gonzales serving under a president elected as an anti-Bush on, among other issues, government secrecy. But the lesson apparently was lost on Eric Holder, President Obama’s frequently embattled attorney general for the past five years.
As attorney general, Holder signed off on an application for a search warrant that officially labeled Fox News chief Washington correspondent James Rosen a possible criminal for having reported classified information. Holder approved the legal filing so casually, it would appear, that he all but forgot about it until the Washington Post brought it to light.
Rosen came under investigation as part of the Obama administration’s aggressive efforts to root out government leakers, apparently after a State Department adviser slipped him a classified intelligence assessment about North Korea back in 2010. A second leaker investigation currently under way stems from the Associated Press’s report in May 2012 of the CIA’s foiling of an al Qaeda airplane bomb plot.
In both cases, the Justice Department has gone after reporters’ telephone records and e-mails to try to identify the inside-government leakers. News organizations and free-press groups say the actions are making it harder for reporters to do their jobs and violate even the limited safeguards for newsgathering now in place.
The administration is defending the investigations and the tactics employed. The AP story supposedly exposed a U.S. undercover agent inside al Qaeda. The Fox News report is said to have similarly tipped off the North Koreans that the United States had a mole inside the Pyongyang regime. In both cases, the administration is arguing that reporters’ records were examined only after investigators had exhausted other leads to try to find the leakers.
The investigations would have touched the news organizations’ nerves in any case, but the details that have emerged suggest FBI agents vacuumed up reporters’ records indiscriminately. In the AP investigation, the Justice Department secretly obtained telephone records for more than 20 separate telephone lines assigned to AP and its journalists, including general AP office numbers in New York, Washington, and Hartford, Conn., and the AP’s main number in the House of Representatives press gallery.
Justice Department guidelines call for prior notice to a news organization before telephone records are seized unless notice would jeopardize the investigation. The AP was notified in this case only after the fact in a letter dated Friday, May 10. In a letter of protest sent the next Monday, Gary Pruitt, the AP’s president and CEO, said there could be “no possible justification for the overbroad collection” of reporters’ telephone logs.
Justice Department rules require that any subpoena for reporters’ records be approved by the attorney general. Holder recused himself from the AP investigation  reportedly because he was one of the government officials interviewed about the leak. The subpoena for the AP records was instead approved by James Cole, the deputy attorney general.
The earlier investigation of Rosen, Fox News’ chief Washington correspondent, came to light in the aftermath of the news of the AP leak probe. The Post’s story, published May 20, disclosed that in addition to obtaining a search warrant for Rosen’s personal e-mails, investigators used security badge access records to track his comings and goings at the State Department. They also traced the timing of Rosen’s calls with the State Department security adviser, Stephen Jin-Woo Kim, suspected of sharing the classified report.
The FBI agent’s affidavit supporting the search warrant application does not name Rosen, the Post, but describes the unidentified reporters as having broken federal law “at the very least, either as an aider, abettor and/or co-conspirator.” The Post story did not mention Holder, but the department later confirmed NBC News’ report that Holder approved the application. Before the Post story broke, however, Holder had disclaimed any interest in prosecuting journalists for publishing classified information. “That is not something that I have ever been involved in or would think would be a wise policy," Holder told the House Judiciary Committee on May 15.
Holder’s answer may not be perjury, as some Republican lawmakers are now suggesting, but it is at least lawyer-like in the most unfavorable sense of that phrase. And it gives Republicans who have had Holder in their sights from day one a powerful talking point even as free press-minded Democrats are loath to vigorously defend him.
At President Obama’s direction, Holder now has a July 12 deadline to come up with recommendations on how better to safeguard newsgathering in leak investigations. Holder tried to reassure news media executives in an off-the-record meeting last week [May 30] and is reported to be considering various steps to tighten the existing rules and procedures. Any new safeguards will be effective, however, only to the extent that Holder or his successors approach leak investigations with more care than he and his department have shown to date.

About Me

Kenneth Jost is author of Supreme Court Yearbook and Supreme Court From A to Z (both CQ Press) and Trending Toward #Justice. He graduated from Harvard College and Georgetown University Law Center, where he is an adjunct professor. He is a contributing writer with CQ Researcher and was a member of the CQ Researcher team that won the 2002 American Bar Association Silver Gavel Award. His articles have appeared in national and legal publications; he also appears as an analyst on national and local radio and television news programs.

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